Despite President Bushâ€™s suggestion that he values judges who are â€œrestrainedâ€? and understand the limited role of the courts, Judge Alito has aggressively sought to curb Congress' legislative authority to tackle issues of national importance, voting to invalidate a federal prohibition on machine gun possession and part of the federal Family and Medical Leave Act. For this reason, journalist and legal scholar Jeffrey Rosen, who supported the nomination of John Roberts, asserted that Judge Alito has been a â€œconservative activistâ€? whose â€œlack of deference to Congress is unsettling.â€? [3] In the 1996 case upholding Congressâ€™ authority to pass a machine gun ban, Judge Alitoâ€™s colleagues pointed out that the approach adopted by his dissent would require the elected branches of government to â€œplay Show and Tell with the federal courts.â€?[4] Judge Alitoâ€™s views suggest a commitment to accelerating the arrogation of power to the Supreme Court and away from Congress that was one of the hallmarks of the Rehnquist era.[5]

[footnotes:]

3 Jeffrey Rosen, How to Judge, THE NEW REPUBLIC, Dec. 6, 2004, at 18.
4 United States v. Rybar, 103 F.3d 273, 282 (3d Cir. 1996) cert. denied 522 U.S. 807 (1997).
5 As Jeffrey Rosen has noted, between 1995 and 2003 the Rehnquist court struck down thirty-three federal laws on constitutional grounds, doing so at a higher annual rate than any court in American history. Jeffrey Rosen, The Unregulated Offensive, THE NEW YORK TIMES MAGAZINE, April 17, 2005.

The report continues....

In several divided decisions, Judge Alito has also undermined Congressional intent by voting in dissent to make it harder for plaintiffs to prove claims of race and sex discrimination. In one case, he was alone among 13 judges, voting not only to deny relief to the alleged victim but to place a new procedural hurdle in the path of others making discrimination claims. In another case, the majority asserted that that the federal law barring employment discrimination â€œwould be eviscerated if our analysis were to halt where [Judge Alitoâ€™s dissent] suggests.â€? [6]

â€œItâ€™s no secret that Justice Oâ€™Connor was the fifth vote in many 5-4 decisions that protected womenâ€™s fundamental rights and freedoms,â€? said Marcia D. Greenberger, Co-President of the National Womenâ€™s Law Center. â€œIn nominating Judge Alito, President Bush has chosen someone who threatens the very existence of core legal rights that Americans, especially women, have relied on for decades.

â€œInstead of naming a consensus nominee, President Bush has opted to pick someone who meets the far rightâ€™s ideological litmus test,â€? Greenberger added.

Alito took pains to distant himself from the longstanding constitutional requirement that abortion restrictions must have exceptions when a woman's health is in jeopardy. He did so when ruling on a law that effectively banned abortion as early as the 12th week of pregnancy and lacked an exception to protect womenâ€™s health. The health exception is a fundamental tenet of Roe v. Wade, and the Supreme Court is scheduled to hear arguments about the need for the health exception this fall. Should Alitoâ€™s vote replace that of Sandra Day Oâ€™Connor, a fundamental right will likely be lost by next summer.

Alito has argued that significant restrictions on a woman's right to choose are constitutional. In Planned Parenthood of Southeastern Pennsylvania v. Casey, Alito argued that all of the proposed lawâ€™s restrictions on a woman's right to choose â€“ including a spousal notification provision struck down by the Third Circuit and, later, the Supreme Court â€“ were constitutional. Alito dissented in part because he would have gone even further than the rest of the court.

Alito would uphold state laws that place significant roadblocks in the way of women seeking abortion care. Alito concurred with the majorityâ€™s opinion in Casey that concluded that â€œtime delay, higher cost, reduced availability, and forcing the woman to receive information she has not sought,â€? although admittedly â€œpotential burdens,â€? could not â€œbe characterized as an undue burden.â€? This opinion practically ensures that he would never find any burden to be undue.

Statements against Alito are coming out so quickly, it's impossible to keep up.

In Doe v. Groody (2004) (.pdf), Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home.

The court ruled that, even though police officers asked for the power to search all persons, the warrant declined to grant such authority. In his lone dissent, Alito dismisses this, and goes into what "drug dealers" do and "commonsense" methods to oppose them. Never mind the law, his mind was made up.

2. Reagan and Clinton Understood, Bush Does Not: This is not a Republican or Democratic Party issue. President Reagan broke the gender barrier on the Supreme court and President Clinton followed suit. Both Parties understand the importance of this issue. President Bush, by contrast, has used women as political pawns in the Supreme Court nomination process, but he does not get it. Women must be on the court.

3. More Than Wives and Mothers: This is a critical issue that must be discussed. Women in America are essential to every aspect of our way of life. They are not just wives and mothers. George W. Bush seemed to get this when he nominated Condi Rice, but when it comes to the Supreme Court, he forgot.

4. 'Freedom' Means Not Having To Ask Your Husband's Permission: Over and over again, President Bush has told the American people that we invaded Iraq so that women can be free--free to drive, free to study, free to vote, free to work--free to do whatever they want without living as second class citizens to men. Now, he nominates a judge who believes that women must be required by law to ask their husband's permission before seeking medical care. Our soldiers are dying in Iraq to overturn laws of this kind, but President Bush nominates a judge in America who supports them.

(Read the whole thing.)

Point #4 bears repeating -- often. In Alito's view, women must ask permission of their husbands to receive medical care. One might even call him Ayatollah Alito -- a fundamentalist zealot who considers women not only less than equal but, in fact, property of men.

Now we see why the radical right rulers of the GOP were so opposed to Harriet Miers. As ideologically conservative and devotedly "born again" as she was, by being female she was too "feminist" to be trusted to relegate women back to chattel status.

You can see the puppet strings in Washington. Bush is catering to the demands of the vocal arch-conservative pseudo-religious minority that runs the Republican Party and would rule the country -- by force, if necessary. Their will be done. Might makes right. Hatred is a virtue. For all the "religion" supposedly involved, one wonders where the teachings of the Bible went in all this.

We'll have plenty of analysis and discussion about President Bush's new nominee, since the confirmation hearings likely won't be until January, but here's a quick take. The AP reports:

Judicial conservatives praise Alitoâ€™s 15 years on the Philadelphia-based court, a tenure that gives him more appellate experience than almost any previous Supreme Court nominee. They say his record shows a commitment to a strict interpretation of the Constitution, ensuring that the separation of powers and checks and balances are respected and enforced. They also contend that Alito has been a powerful voice for the First Amendmentâ€™s guarantees of free speech and the free exercise of religion.

Liberal groups, on the other hand, note Alitoâ€™s moniker and say his nomination raises troubling concerns, especially when it comes to his record on civil rights and reproductive rights. Alito is a frequent dissenter on the 3rd Circuit, one of the most liberal federal appellate benches in the nation.

In the early 1990s, Alito was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

â€œThe Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbandsâ€™ knowledge because of perceived problems â€” such as economic constraints, future plans or the husbandsâ€™ previously expressed opposition â€” that may be obviated by discussion prior to the abortion,â€? Alito wrote.

He has not been a down-the-line abortion foe. In 2000, Alito joined the majority that found a New Jersey law banning late-term abortions unconstitutional. In his concurring opinion, Alito said the Supreme Court required such a ban to include an exception if the motherâ€™s health was endangered.

Of course, what this does not reveal is his attitude on stare decisis. Sitting on the Supreme Court, would he still hold to Supreme Court precedents when they run up against his personal ideology?

Like Roberts, Alito served during the Reagan administration in the office of the Solicitor General, which argues on behalf of the government in the Supreme Court.

Unlike Roberts, he has opined from the bench on both abortion rights, church-state separation and gender discrimination to the pleasure of conservatives and displeasure of liberals.

And, regarding Casey:

Citing previous opinions of O'Connor, Alito wrote that an abortion regulation is unconstitutional only if it imposes an undue burden on a woman's access to the procedure. The spousal notification provision, he wrote, does not constitute such a burden and must therefore only meet the requirement that it be rationally related to some legitimate government purpose.

"Even assuming that the rational relationship test is more demanding in the present context than in most equal protection cases, that test is satisfied here," he wrote.

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion.

"In addition," he wrote, "the legislature could have reasonably concluded that Section 3209 [the spousal provision] would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. . . . The Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it "unwise" or worse. "

"Some legitimate government purpose?" "Husband's interest"? He makes it sound like a real estate transaction. Obviously he feels that the woman does not own her own womb, and that a marriage commitment includes always notifying the husband of any plan to abort a woman's pregnancy, even if he's an abuser (which sadly is not uncommon enough) or simply gone (which sadly is not all that rare, either).

Justice Sandra Day O'Connor, whom Alito would replace on the bench, had a much clearer view of the issue, unclouded by ideological bias or unexamined misogyny:

On the spousal notification provision, O'Connor wrote for the court that it did indeed constitute an obstacle. The "spousal notification requirement is . . . likely to prevent a significant number of women from obtaining an abortion," she wrote.

"It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases," she said.

Plus, it "embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry, " she said.

"The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family."

Alito also whips up fantasy scenarios of possible reasons a woman may choose to abort a pregnancy, as if they represented the significance or gravity of all possible scenarios. To me, it's something like arguing that some people are obese, therefore it's not unreasonable for the state to cancel food stamps programs for the poor.

Predictably, such a divisive nominee, coming from the president that puts party politics above national interests foreign and domestic, has triggered split responses:

â€œThe president has made an excellent choice today which reflects his commitment to appoint judges in the mold of Scalia and Thomas,â€? said Kay Daly, president of the conservative Coalition for a Fair Judiciary.

â€œItâ€™s a pretty predictable move from a politically crippled president,â€? said Democratic consultant Jim Jordan. â€œToss out a judicial extremist to pacify his base and provoke a fight that he hopes changes the subject away from indictments and Iraq and Katrina and a soft economy.â€?

Of course, it's no surprise considering Bush's talent to divide a nation united. Clearly Karl Rove is back, and Bush is set on pitting American against American, all in the name of the national defense of the GOP.

Justice Sandra Day O'Connor, the first woman appointed to the Supreme Court and a key swing vote on issues such as abortion and the death penalty, said Friday she is retiring.

O'Connor, 75, said she expects to leave before the start of the court's next term in October, or whenever the Senate confirms her successor. There was no immediate word from the White House on who might be nominated to replace O'Connor.

Now I am really scared.

Possible replacements include Attorney General Alberto R. Gonzales and federal courts of appeals judges J. Michael Luttig, John Roberts, Samuel A. Alito Jr., Michael McConnell, Emilio Garza and James Harvie Wilkinson III. Others mentioned are former Solicitor General Theodore Olson, lawyer Miguel Estrada and former deputy attorney general Larry Thompson, but Bush's pick could be a surprise choice not well known in legal circles.

Another prospective candidate is Edith Hollan Jones, a judge on the 5th U.S. Circuit Court of Appeals who was also considered for a Supreme Court vacancy by President Bush's father.

O'Connor's appointment in 1981 by President Ronald Reagan, quickly confirmed by the Senate, ended 191 years of male exclusivity on the high court.

*snip*

Perhaps the best example of her influence is the court's evolving stance on abortion. She distanced herself both from her three most conservative colleagues, who say there is no constitutional underpinning for a right to abortion, and from more liberal justices for whom the right is a given.

O'Connor initially balked at letting states outlaw most abortions, refusing in 1989 to join four other justices who were ready to reverse the landmark 1973 decision that said women have a constitutional right to abortion.

Then in 1992, she helped forge and lead a five-justice majority that reaffirmed the core holding of the 1973 ruling. Subsequent appointments secured the abortion right.

In other words, if you tought politics were getting ugly, you ain't seen nothing yet!